Recent decisions of the Court of Appeal, including most recently in Haycocks & anr v Neville & anr [2007], have highlighted the desperate nature of the pursuit of boundary disputes by private clients. Neighbours place themselves in jeopardy for tens (or even hundreds) of thousands of pounds of legal and professional costs over small pieces of land of little or no financial value. They may run the risk of financial ruin and all the misery that brings, over a few square metres – or even centimetres – of ground. The lawyers acting in such proceedings are sometimes characterised in the media as amoral leeches who add insult to injury by feeding off the lifeblood of these unfortunate citizens. But are those headlines right or is there more to it than that?

In commercial property matters the concept of a ransom strip is well known and a similarly modest strip of land may hold the lock and key to a very valuable development. In commercial terms, disputes over ransom strips are considered fair game because there is so much money at stake.

In a residential context, as the saying goes, an Englishman’s home is his castle. The sanctity of its boundaries is symbolic of personal safety and security under the rule of law. A violation of those boundaries is, therefore, to borrow the old sporting joke, not a matter of life and death, but much more important than that. The idea of living peaceably next to a person who has perpetrated the ultimate humiliation of appropriating your property is unthinkable to someone in this frame of mind. It could be considered heartening that not everything concerning property is valued in financial terms. There is an all-pervading view of property as an investment and there is no doubt that some people see it only in those terms, but deep within others there is a connection which makes their homes much more complexly related to their sense of well-being.

Not to act to restore matters when a neighbour has encroached on their land would be a capitulation, submitting to a rogue’s charter and a licence for the unscrupulous to take advantage. There is moral value in upholding the law. People believe they will be vindicated and that the law will protect their rights. They may not necessarily spontaneously or rationally appreciate the uncertainty or the phenomenal expense of court proceedings. The danger is that by the time they do so, they are in too deep and see fighting to the bitter end as the only option.

Best interests of the client

We are all familiar with the idea that it is (and will be expressly when the Solicitors’ Code of Conduct 2007 comes into force) a solicitor’s professional duty to act in the best interests of their client. The guidance to rule 1 – core duties – elaborates on that principle, stating that:

You must always act in good faith and do your best for your client. Most importantly you must observe:

(1) your obligations with regard to conflicts of interest; and

(2) your obligations not to use your position to take unfair advantage of the client.

It seems reasonable to hold the view that a solicitor owes an equivalent moral duty to their client. A solicitor must beware of promoting litigation with a view to the costs to be generated, especially at disproportionate risk to the client. Where a client is feeling particularly vulnerable and angry because of the indignity suffered, it could be an abuse of trust and confidence to encourage them towards litigation in these cases.

Costs information at the outset and throughout the proceedings

The Solicitors’ Costs and Client Care Code 1999 sets out in detail the professional ethics regarding the provision of information to clients about costs. This information should be given at the outset and at appropriate stages throughout any matter. It should be clear and provided in a way and at a level that are appropriate to the particular client (and, if given orally, confirmed in writing as soon as possible). Asolicitor should give the best information possible about likely overall costs, which includes giving a realistic estimate or a forecast within a possible range of costs, or explain why it is not possible to give a realistic estimate or forecast of overall costs. It is specifically provided that a solicitor should discuss with the client whether the likely outcome in a matter will justify the expense or risk involved, including the risk of having to bear the opponent’s costs. Clients must also be warned that even if they are successful the opponent may not be ordered to pay, or be capable of paying, the full amount of the client’s costs.

Familiarity breeds contempt and there are so many warnings given as part of daily living (smoking can seriously damage your health, investments go up and down, your home may be repossessed if you do not keep up the payments on your mortgage etc) that there is potential for one more warning to flow like water off a duck’s back. Given the high stakes, morally and professionally, a solicitor should endeavour to communicate the real risks effectively.

However, provided a solicitor follows this guidance there is no reason why an aggrieved party should be deprived of the power to have the issues duly determined. We are free to spend our money as we see fit. If the matter is of sufficient importance to us, the greater immorality would be to leave the victim with no remedy. The absence of a just system provokes extreme measures, which are far worse in the long run. It would be a curious society that would be prepared to see someone lose their fortune at a super-casino, but deny them the right to spend that same fortune in defence of their legal rights.

CPR

One of the guiding principles of the introduction of the CPR was the idea of proportionality of costs in civil cases. Arguably, if someone’s life is made a misery and their self-esteem shattered by the invasion of their space, can it really be said that that is not an important matter? They may feel the only alternative is to move from a place in which they are otherwise very happy. However, the difficulty is that the Rolls- Royce service contemplated by the obligations set out in the CPR imposes substantial professional duties on solicitors, and those come at a significant cost. Given that the client is determined to commit so much to the principle, the moral obligation to present the best case for the client (and get it right) is not necessarily outweighed by the moral obligation to keep costs within reasonable bounds. If a client has been clearly and effectively warned about the risk, it could be morally reprehensible to refuse to take the case or not to prepare fully and deny them the opportunity to have their position professionally presented.

ADR

Anther guiding principle of the CPR is that parties to a dispute should see litigation as a last resort and should endeavour to settle their differences by ADR. There are certainly many situations in which mediation is an appropriate means of bringing parties together and achieving an outcome that truly is a win-win result. Cases in which the parties will need to co-exist in the future, such as boundary disputes, are in theory particularly suitable for this form of ADR. Carnworth LJ, in Liaquat Ali v Robert Lane [2006], emphasised that professional advisers should regard themselves as under a duty to ensure that their clients are aware of the potentially catastrophic consequences of this kind of litigation and of the possibilities of ADR procedures. Judicial displeasure at a refusal of an offer from the other party to mediate may result in adverse costs consequences, but the ultimate likelihood must still be that costs follow the event, unless there is a ‘without prejudice save as to costs’ proposal that is not beaten by the victor.

For mediation to succeed, both parties have to want to settle. Feelings run very high in neighbour disputes and even the most skilful of mediators and determined of solicitors may not be able to broker a deal. These cases are ones where the parties want a determination of their legal rights and to be vindicated by that, rather than to make concessions. Since a mediation is conducted without prejudice and only achieves a result if the parties agree, if there is a serious likelihood of failure it will simply add to costs, rather than save them, and the costs of mediation, whilst less than a trial, are not necessarily insignificant.

Expert determination is another alternative and in the right hands can produce a swift, fair and comparatively inexpensive result. The difficulty is in finding an appropriate expert, persuading both sides that this is the best way to go about things and for each to have trust and confidence that the fair and correct outcome will be achieved. There are costs in drawing up the terms of reference and in preparing submissions for the expert. It is necessary to identify the key issues between the parties so as to appoint an expert from the correct professional discipline. An expert surveyor may not be able to deal with difficult questions of law, and an expert lawyer is likely to need detailed assistance from a surveyor on the surveying aspects. The principal difficulty is likely to be the degree of cooperation required to set up and follow through on an expert determination in a situation in which, by definition, the parties are at loggerheads. It is also common for an expert determination to mean that, in addition to the determining expert, each party will want their own expert to assist them in instructing the determining expert and evaluating their work, so that the cost saving may be less than anticipated.

So, professionally and morally, a solicitor must consider ADR with clients, but that does not mean that ADR is the magic wand to solve the problem. It will be a fruitless drain on costs if the parties cannot agree.

The problems – and a solution

The three main problems in concluding boundary disputes (like most others) are uncertainty of outcome, expense and delay. Three points are relevant here:

(1) The decision in Haycocks, whilst no doubt achieving the fairest result in the circumstances, has done little to reduce the uncertainty of outcome in these cases.

(2) Whilst laudable in their objectives and potentially an enhancement of the quality of preparation to be expected in cases, the provisions of the CPR increase rather than decrease the costs of litigation.

(3) The third problem is delay, which is endemic in the County Court system. The stress of protracted procedures takes an additional toll on the unfortunate litigants.

Solicitors will often try extremely hard to deter clients from embarking on this process. Our system of justice is such that parties cannot be provided with a prompt, conclusive and inexpensive solution to a dispute that may have very little monetary value, but may be of great psychological importance to those involved. The greatest moral obligation is that of society collectively, and the legal profession in particular, to devise and implement an appropriate system to address these wrongs.

The provision of a clear protocol on the preparation and conduct of the claims would be a step forward. This should endeavour to avoid the repetition of effort that is so often generated by other pre-action protocols. It should set out a brief but effective warning of the dangers of such litigation, identify clearly the nature of the evidence a party may wish to adduce (with the benefit of the guidance in Haycocks) and require the early exchange of that evidence.

Options for ADR should be outlined, but robust management of the claim encouraged, to bring about a prompt and economic conclusion.

The courts clearly recognise that passions run high in these disputes. They promote ADR as the preferred solution to assuage those feelings. ADR has its place, but it is ducking the moral imperative to see ADR as a panacea.  © Property Law Journal